Roderick T. Barber v. Domingo Uribe

The opinion of the court was delivered by: Dean D. Pregerson United States District Judge

ORDER ACCEPTING FINDINGS, CONCLUSIONS AND RECOMMENDATIONS OF UNITED STATES MAGISTRATE JUDGE

Pursuant to 28 U.S.C. § 636, the Court has reviewed the Petition, all the records and files herein, the Report and Recommendation of the United States Magistrate Judge, and Petitioner's Objections. After having made a de novo determination of the portions of the Report and Recommendation to which Objections were directed, the Court concurs with and accepts the findings and conclusions of the Magistrate Judge.

In his Objections, Petitioner alleges that evidence from his first trial, i.e., a bag allegedly containing convenience store and restaurant receipts, was improperly destroyed, thereby depriving him of evidence to support an alibi defense at his second trial that he was in Las Vegas when the crime in Los Angeles occurred. (Objections at 4). However, even if Petitioner's allegations were true, generic receipts from Las Vegas would not establish that Petitioner was the purchaser and would not have changed the result at trial.

Furthermore, Petitioner's claim that "[a]t trial, Petitioner tried to impress upon the jury that he was in Las Vegas" at the time of the offense is not supported by the record. (Objections at 13). At Petitioner's first trial, an alibi witness unsuccessfully tried to place Petitioner at another location in Los Angeles. (See 1RT 648-57, 679-703). Petitioner did not present any witnesses at his retrial. (Lodgment 1, RT at i). Instead, counsel argued that the eyewitnesses were unreliable without trying to fix Petitioner's whereabouts. (RT 1020-31). Petitioner did not present an alibi defense at his second trial, much less one that would have contradicted his defense from the first trial.

IT IS ORDERED that the Petition is denied and Judgment shall be entered dismissing this action with prejudice.

IT IS FURTHER ORDERED that the Clerk serve copies of this Order and the Judgment herein on counsel for Petitioner and counsel for Respondent.

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